TAP INNOVATIONS, LLC
1. SOFTWARE AND SUPPORT
1.1 Services. Subject to all the terms of this Agreement, including Customer’s timely payment of Fees (as defined herein), TAP will make the Software available to Customer as a service, along with related support services (the “Services”). TAP may provide the Software and Services using its own infrastructure or using a third-party cloud computing services provider. TAP may, in its sole discretion, modify, enhance and/or expand the Software at no additional cost to Customer. TAP may also modify, enhance or expand the Software by providing additional features or functionality, which may, but are not required to be, added by Customer to this Agreement at additional cost. Such additional cost features and functionality may be added by mutual written agreement of the parties. Customer acknowledges that its purchase of the Services hereunder are not contingent on the delivery of any future functionality or features in any of the Software.
1.2 License Grant. Subject to all of the terms of this Agreement, including Customer’s timely payment of Fees, TAP hereby grants to Customer, during the Term of this Agreement, a limited, non-exclusive, non-sublicensable and non-transferrable license to access and use the Software in the manner provided by TAP, solely for Customer’s own internal business operations.
1.3 Availability. TAP will use commercially reasonable efforts to make the Software available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which TAP will provide at least 8 hours electronic notice and which TAP will schedule, to the extent practicable, outside of normal office hours), and (b) any unavailability caused by circumstances beyond TAP’s reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving TAP’s employees), Internet service provider failure or delay, failure or delay of service from any third party cloud computing services provider, or denial of service attack.
1.4 Support. Subject to all of the terms of this Agreement, including Customer’s timely payment of Fees (as defined herein), TAP will provide Customer with standard phone and email technical support (break-fix, questions and answers, end user permission and other general Software help) services Monday through Friday, 8-5pm CST, except major holidays (New Year’s Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day, Christmas Eve, Christmas Day, and New Year’s Eve). TAP will provide 24/7 monitoring of Software. TAP will publish the support phone and email details to the Customer prior to Services implementation. This is subject to change from time-to-time or this may be stated, specifically in the Services Form. Additional details about TAP’s current Application support program will be provided on request. TAP has the right to change, modify or amend its Application support program at any time in its sole discretion. Additional or upgraded support services may be available for an additional fee.
1.5 Professional Services. From time to time, so long as this Agreement remains in full force and effect, TAP and Customer may, but are under no obligation to, enter one or more statements of work (each, an “SOW”) to engage set-up, implementation, consulting or other professional services (“Professional Services”) by TAP. Professional Services will only be provided pursuant to a signed SOW, which may be included as part of a Services From. Each SOW shall contain, at a minimum, the following information: (a) the scope of the Professional Services to be provided; (b) applicable fees; (c) responsibilities and dependencies of each party; (d) agreed upon work product and specific deliverables, if any; and (e) signatures of authorized representatives. TAP has no obligation to provide Professional Services without a fully-executed SOW. Each SOW, regardless of whether it relates to the same subject matter as any previously executed SOW(s), shall become effective upon execution by authorized representatives of both parties.
1.6 Change Order Procedures. Customer may request a change to the scope of Services in an SOW by submitting a written request to TAP describing the proposed change in reasonable detail (the “Change Order Request”). TAP shall prepare and submit a change order proposal (“Change Order”) that describes the proposed impact of the requested change, including, without limitation, modifications to projected schedules and estimated fees as a result of such change. Upon execution of a Change Order, the applicable SOW will be deemed amended as provided in the Change Order. No Change Order Request or Change Order shall be binding until agreed to in writing and signed by authorized representatives of each Party.
1.7 Software and Deliverables. The ownership of each Software and any Deliverables shall be as set forth in the SOW applicable to the development thereof. In the event that the ownership of Software is not set forth in an SOW, the Software shall be the exclusive property of TAP and Customer shall have only the right and license to use the Software and Deliverables for its own internal business purposes, subject to all of the terms and conditions of this Agreement.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Access to the Software is subject to usage limits that are specified in the Services Forms. Unless otherwise specified in the applicable Services Form, Software and Services are purchased as monthly user subscriptions and the Software may not be accessed by more than the number of users (each a “User”). If Customer exceeds a contractual usage limit, TAP may work with Customer to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding these efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Services Form for additional quantities of Users promptly upon request, and/or pay any invoice for excess usage in accordance with this Agreement. Additional Users may be purchased during the Term by signing an additional Services Form and paying the additional fees for such additional Users.
2.3 Customer will not, directly or indirectly, do any of the following: (a) make any Software available to, or use any Software for the benefit of, anyone other than Customer or its authorized Users; (b) sell, resell, license, sublicense, distribute, rent or lease any Software unless agreed to in writing with TAP; (c) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) interfere with or disrupt the integrity or performance of any the Software; (e) attempt to gain unauthorized access to any Software; or (f) permit direct or indirect access to or use of any Software in a way that circumvents a contractual usage limit.
2.4 Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software, or any documentation or data related thereto; (b) modify, translate, or create derivative works based on the Software (except to the extent expressly permitted by TAP or authorized within the Services); (c) use any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or (d) remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, TAP hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.5 Customer may not remove or export from the United States or allow the export or re-export of Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
2.6 Although TAP has no obligation to monitor Customer’s use of the Software, TAP may do so and may prohibit any use of the Software it believes may be (or alleged to be) in violation of this Section 2 or any other provision in this Agreement.
2.7 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of TAP includes non-public information regarding features, functionality, and performance of the Software. Proprietary Information of Customer includes non-public data provided by Customer to TAP to enable the provision of the Software (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect the Proprietary Information of the Disclosing Party; and (ii) not to use (except in performance of the Software or as otherwise permitted herein) or divulge to any third person the Proprietary Information of the Disclosing Party. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document: (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title, and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Software. TAP shall own and retain all right, title and interest in and to (a) the Software and the Services, and all improvements, enhancements or modifications thereto, (b) any software, Software, inventions or other technology developed in connection with Professional Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Customer hereby grants TAP a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services and/or Software any suggestions, enhancement requests, recommendations, correction or other feedback provided by Customer, including Users, relating to the functionality and/or operation of the Services and/or Software.
3.4 Notwithstanding anything to the contrary, TAP shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and TAP shall also have the right (during and after the Term hereof) to (a) use such information and data to improve and enhance the Software and for other development, diagnostic and corrective purposes in connection with the Software and other TAP offerings, and (b) disclose such data, so long as it does not otherwise disclose the Proprietary Information of Customer.
3.5 No rights or licenses are granted except as expressly set forth herein.
4. FEES AND PAYMENT FOR SOFTWARE 4.1 Customer will pay TAP the applicable fees described in the Services Form for the Software, Services and Professional Services in accordance with the terms of this Agreement (the “Fees”). 4.2 TAP will invoice Customer for Fees due under this Agreement. All invoices are due and payable within thirty (30) days following Customer’s receipt of the invoice. Unpaid amounts are subject to an interest charge of 1% per month on any outstanding balance, or the maximum permitted by law. Customer shall reimburse TAP for all expenses of collection of past due amounts. 4.3 Customer is responsible for all taxes associated with Software and Services other than U.S. taxes based on TAP’s net income 4.4 If Customer’s use of the Software exceeds any of the limitations set forth on the Services Form or otherwise requires the payment of additional Fees, Customer shall be billed for such usage and Customer agrees to pay the additional Fees in the manner provided herein. 4.5 TAP reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term on the Software Services Form or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). 4.6 If Customer believes that TAP has billed Customer incorrectly, Customer must contact TAP no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to TAP’s customer support department. 4.7 If any amount owing by Customer is thirty (30) or more days overdue, TAP may, without limiting its other rights and remedies, suspend the Customer’s access to the Software until such amounts are paid in full.